NATIONAL SPOT EXCHANGE LIMITED versus MR. ANIL KOHLI, RESOLUTION PROFESSIONAL FOR DUNAR FOODS LIMITED on 14 September 2021

SUPREME COURT REPORTS

[2021] 7 S.C.R.

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NATIONAL SPOT EXCHANGE LIMITED

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MR. ANIL KOHLI, RESOLUTION PROFESSIONAL FORDUNAR FOODS LIMITED

(Civil Appeal No. 6187 of 2019)

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SEPTEMBER 14, 2021

[M. R. SHAH AND ANIRUDDHA BOSE, JJ.]

Insolvency and Bankruptcy Code, 2016 – s.61(2) – Appealsand Appellate Authority – In response to the public announcementCby Interim Resolution Professional (IRP) inviting the claims fromthe creditors of the corporate debtor, the appellant submitted claimof Rs.673.85 crores – The IRP rejected the claim of the appellanton the ground that there was no privity of contract between theappellant and the corporate debtor and no letter of guarantee wasDissued by the corporate debtor in favour of the appellant – Appellantchallenged the rejection before the National Company Law Tribunal(NCLT), which upheld the decision of the IRP – Aggrieved, theappellant preferred appeal before the National Company LawAppellate Tribunal (NCLAT) – There was a delay of 44 days inpreferring the said appeal – The NCLAT dismissed the appeal onEthe ground that Appellate Tribunal has no jurisdiction to condonethe delay beyond 15 days from 30 days and appeal is barred bylimitation – On appeal, held: As per s.61(2) of the IB Code, theappeal is required to be preferred within a period of 30 days – TheAppellate Tribunal may allow an appeal to be filed beyond the periodFof 30 days, if it is satisfied that there was sufficient cause for notfiling the appeal, but such period shall not exceed 15 days – So,the appeal before the NCLAT was required to be filed within amaximum period of 45 days (30 days + 15 days) – However, in theinstant case there was delay of 44 days beyond a total period of 45days – It is settled legal position that the law of limitation may harshlyGaffect a particular party but it has to be applied with all its rigourwhen the Statute so prescribes – The Court has no power to extendthe period of limitation on equitable grounds – It cannot be saidthat the NCLAT has committed any error in dismissing the appealon the ground of limitation by observing that it has no jurisdictionHand/or power to condone the delay exceeding 15 days.

Dismissing the appeal, the Court

HELD: 1. At the outset, it is required to be noted that theappellant herein has challenged the order passed by theadjudicating authority dated 6.3.2019 affirming the decision ofthe resolution professional of rejection of the claim of the appellantbefore the NCLAT. The appeal preferred before the NCLAT wasunder Section 61(2) of the IB Code. As per Section 61(2) of theIB Code, the appeal was required to be preferred within a periodof thirty days. Therefore, the limitation period prescribed to preferan appeal was 30 days. However, as per the proviso to Section61(2) of the Code, the Appellate Tribunal may allow an appeal tobe filed after the expiry of the said period of 30 days if it is satisfiedthat there was sufficient cause for not filing the appeal, but suchperiod shall not exceed 15 days. Therefore, the Appellate Tribunalhas no jurisdiction at all to condone the delay exceeding 15 daysfrom the period of 30 days, as contemplated under Section 61(2)of the IB Code. [Para 7][1034-A-D]

2. In the present case, even the appellant applied for thecertified copy of the order passed by the adjudicating authorityon 8.4.2019, i.e., after a delay of 34 days. Therefore, even thecertified copy of the order passed by the adjudicating authoritywas applied beyond the prescribed period of limitation, i.e., beyond30 days. The certified copy of the order was received by theappellant on 11.04.2019 and the appeal before the NCLAT waspreferred on 24.06.2019, i.e., after a delay of 44 days. As theAppellate Tribunal can condone the delay up to a period of 15days only, the Appellate Tribunal refused to condone the delaywhich was beyond 15 days from completion of 30 days, i.e., in thepresent case delay of 44 days and consequently dismissed theappeal. Therefore, as such, it cannot be said that the learnedAppellate Tribunal committed any error in not condoning the delayof 44 days, which was beyond the delay of 15 days which cannotbe condoned as per Section 61(2) of the IB Code. [Para 7.1][1034-F-H; 1035-A]

3. It is true that in a given case there may arise a situationwhere the applicant/appellant may not be in a position to file theappeal even within a statutory period of limitation prescribedunder the Act and even within the extended maximum period of A

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Aappeal which could be condoned owing to genuineness, viz.,illness, accident etc. However, under the statute, the Parliamenthas not carved out any exception of such a situation. Therefore,in a given case, it may cause hardship, however, unless theParliament has carved out any exception by a provision of law,the period of limitation has to be given effect to. Such powers areBonly with the Parliament and the legislature. The courts have nojurisdiction and/or authority to carve out any exception. If thecourts carve out an exception, it would amount to legislate whichwould in turn might be inserting the provision to the statute,which is not permissible. [Para 9][1036-C-E]

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4. It is also required to be noted that the appellant hasfairly conceded that considering Section 61(2) of the IB Code,the Appellate Tribunal has jurisdiction or power to condone thedelay not exceeding 15 days from the completion of 30 days, thestatutory period of limitation. However, has requested and prayedDto condone the delay in exercise of powers under Article 142 ofthe Constitution of India, in the facts and circumstances of thecase and submitted that the amount involved is a very huge amountand that the appellant is a public body. What cannot be donedirectly considering the statutory provisions cannot be permittedto be done indirectly, while exercising the powers under ArticleE142 of the Constitution of India. [Para 11][1039-G-H; 1040-A-B]

Union of India v. Popular Construction Co., (2001) 8SCC 470 : [2001] 3 Suppl. SCR 619; Rohitash Kumarv. Om Prakash Sharma, (2013) 11 SCC 451 : [2012]13 SCR 47; Raghunath Rai Bareja v. Punjab NationalFBank, (2007) 2 SCC 230 : [2006] 10 Suppl. SCR 287;Oil & Natural Gas Corporation Limited v. GujaratEnergy Transmission Corporation Limited, AIR 2017SC 1352 : [2017] 2 SCR 922; Teri Oat Estates (P) Ltd.v. U.T. Chandigarh, (2004) 2 SCC 130 : [2003] 6 Suppl.GSCR 1235 – relied on.

Chitra Sharma v. Union of India, (2018) 18 SCC 575 :[2018] 12 SCR 1044; Jaiprakash Associates Limited v.IDBI Bank Limited, (2020) 3 SCC 328 : [2019] 14 SCR312; Reliance General Insurance Co. Ltd. v. Mampee H

NATIONAL SPOT EXCHANGE LTD. v. MR. ANIL KOHLI, RESOLUTIONPROFESSIONAL FOR DUNAR FOODS LTD.

Timbers and Hardwares Pvt. Ltd., (2021) 3 SCC 673;New India Assurance Company Limited v. HilliMultipurpose Cold Storage Private Limited, (2020) 5SCC 757; CMD/Chairman, Bharat Sanchar NigamLimited v. Mishri Lal, (2011) 14 SCC 739 : [2011] 5SCR 317; Popat Bahiru Goverdhane v. Special LandAcquisition Officer, (2013) 10 SCC 765 : [2013] 8 SCR241; The Martin Burn Limited v. The Corporation ofCalcutta, AIR 1966 SC 529 : [1966] SCR 543; J.J.Merchant v. Shrinath Chaturvedi, (2002) 6 SCC 635 :[2002] 1 Suppl. SCR 469 – referred to.

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 6187of 2019.

From the Judgment and Order dated 05.07.2019 of the NationalCompany Law Appellate Tribunal, New Delhi in Comp. App. (AT)(Insolvency) No. 683 of 2019.

Maninder Singh, Sr. Adv., Ranjan Kumar Pandey, Sandeep Bisht,Advs. for the Appellant.

Abhishek, M/s Mitter & Mitter Co., Pathik Choudhury, Advs. forthe Respondent.

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1028SUPREME COURT REPORTS

AThe Judgment of the Court was delivered by

M. R. SHAH, J.

1. Feeling aggrieved and dissatisfied with the impugned order dated05.07.2019 passed by the National Company Law Appellate Tribunal,New Delhi (hereinafter referred to as the ‘NCLAT’) in Company AppealB(AT)(Insolvency) No. 683 of 2019, by which the NCLAT has refused tocondone the delay of 44 days in preferring the appeal against the orderpassed by the National Company Law Tribunal (hereinafter referred toas the ’NCLT’), rejecting the claim of the appellant herein, the appellant– National Spot Exchange Limited has preferred the present appeal.

C2. The facts leading to the present appeal in nutshell are as under:

That the State Bank of India has initiated the insolvencyproceedings before the NCLT under Section 7 of the Insolvency andBankruptcy Code, 2016 (hereinafter referred to as the ‘IBC’) againstone Dunar Foods Limited (hereinafter referred to as the ‘CorporateDDebtor’) on the ground that Corporate Debtor had taken credit limits byhypothecating the commodities kept in the warehouses of the appellant– National Spot Exchange Limited; that the NCLT admitted the petitionand commenced the corporate insolvency resolution process against thecorporate debtor under the provisions of the IBC. Interim ResolutionEProfessional (for short, ‘IRP’) was appointed. IRP invited the claimsfrom the creditors of the corporate debtor – Dunar Foods Limited on orbefore 17.01.2018; that the appellant herein submitted its claim and alsoforwarded its claim through courier to IRP as per Form ‘F’ of the IBC.At this stage it is required to be noted that the appellant herein earlierfiled Money Suit against one PD Agro Processors Pvt. Ltd. (hereinafterFreferred to as ‘PD Agro’) and the corporate debtor being CommercialSuit No. 11 of 2014 before the High Court of Judicature at Bombay.The High Court vide order dated 11.04.2014 in Notice of Motion 807 of2014 in CS No. 328 of 2014 injuncted PD Agro and the Corporate Debtorfrom disposing of, alienating, encumbering, parting with possession ofGand/or otherwise creating third party rights in respect of its movable/immovable properties/assets; that one FIR No. 216 of 2013 was alsolodged against PD Agro and subsequently the same came to betransferred to the Economic Offence Wing, Mumbai for furtherinvestigation; that the provisions of Maharashtra Protection of DepositorsAct (MPID) Act, 1999 were also invoked; that it is the case on behalf of H

the appellant that the investigation report submitted by the investigatingagency revealed that PD Agro has siphoned off funds to the tune ofRs.455 crores during the year 2011-12 and Rs. 289 crores during theyear 2012-13 to the Corporate Debtor; that the High Court of Bombaypassed a decree in Commercial Suit No. 11 of 2014 against PD Agro forRs. 633,66,98,350.40 with 9% interest from the date of accrual of thecourse of action/default. The aforesaid shall be dealt with hereinafter.

2.1 That in response to the public announcement by the IRP invitingthe claims from the creditors of the Corporate Debtor (Dunar FoodsLimited) dated 6.1.2018, the appellant submitted the claim of Rs. 673.85crores; that it was the case on behalf of the appellant that a decree hasbeen passed against PD Agro for an amount of Rs.633,66,98,350.40 andon investigation by the Directorate of Enforcement, it is found that Rs.744 crores have been siphoned off by PD Agro to the Corporate Debtor.IRP rejected the claim of the appellant on 18.06.2018 on the ground thatthere is no privity of contract between the appellant and the corporatedebtor and that there is no letter or guarantee issued by the corporatedebtor in favour of the appellant. That the rejection of the claim by IRPcame to be challenged by the appellant before NCLT being MiscellaneousApplication No. 603 of 2018 and the NCLT by order dated 6.3.2019rejected the said application and upheld the decision of the IRP not toinclude the claim of the appellant as a creditor.

3. Being aggrieved and dissatisfied with the order passed by theNCLT dated 6.3.2019, the appellant herein preferred an appeal beforethe NCLAT. There was a delay of 44 days in preferring the said appeal.The appeal before the NCLAT was required to be filed within a maximumperiod of 45 days (30 days + 15 days). However, there was a furtherdelay of 44 days beyond a total period of 45 days. Therefore, consideringsub-section (2) of Section 61 of the IBC which provides for powers tothe Appellate Tribunal to condone the delay of only 15 days which it cancondone over the period of 30 days, if there is a sufficient cause, by theimpugned order, the learned Appellate Tribunal has dismissed the appealon the ground that the Appellate Tribunal has no jurisdiction to condonethe delay beyond 15 days and thereby the appeal is barred by limitation.

4. Feeling aggrieved and dissatisfied with the impugned orderpassed by the learned NCLAT in dismissing the appeal on the ground oflimitation and refusing to condone the delay which was beyond the periodof 15 days, which the Appellate Tribunal could have condoned, the AB

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Aappellant – National Spot Exchange Limited has preferred the presentappeal.

5. Shri Maninder Singh, learned Senior Advocate has appearedon behalf of the appellant and Shri Abhishek, learned Advocate hasappeared on behalf of the IRP.B

5.1 Shri Maninder Singh, learned senior counsel appearing onbehalf of the appellant has submitted that though the learned AppellateTribunal may be justified in dismissing the appeal on the ground of limitationby holding that the Appellate Tribunal has no jurisdiction to condone thedelay beyond 15 days, it is prayed to exercise the powers under ArticleC142 of the Constitution of India, in the peculiar facts and circumstancesof the case.

5.2 It is submitted that on investigation by the Directorate ofEnforcement, it is revealed that PD Agro which was the sister concernof the Corporate Debtor, has siphoned off Rs. 744 crores to the CorporateDDebtor. It is submitted that there was a common management/Directorsof PD Agro as well as the Corporate Debtor. It is submitted that boththe Corporate Debtor and PD Agro are sister concerns and have thesame management. Dunar Foods Limited is a flagship entity of PD Agroand is the main beneficiary of the funds received by PD Agro from thetrades executed on the appellant’s platform. It is submitted that one Mr.ERanjeev Agarwal and Ms. Sheetal Gupta are the directors andshareholders of PD Agro. Shri Ranjeev Agarwal was also the CFO ofthe Corporate Debtor and Ms. Sheetal Gupta is the wife of Shri SurenderGupta. It is submitted that Shri Surender Gupta is the promoter andmanaging director of the corporate debtor. It is submitted that even ShriFSurender Gupta in his statement given under Section 50 PMLA beforethe Enforcement Directorate has confirmed that he was managing theaffairs of PD Agro and that PD Agro is a shareholder of Dunar FoodsLimited, holding 8.25% shares. It is submitted that therefore managementand directors of PD Agro and the Corporate Debtor – Dunar FoodsLimited played a fraud.G

5.3 It is submitted that even the PD Agro admittedly owes and didnot pay INR 693 crores towards their liability despite admitting its liabilityvide letter dated 01.08.2013 and had assured to clear its outstanding in20 weeks in the said letter. It is submitted that during the investigation itis revealed that the corporate debtor used PD Agro as its front and had H

siphoned off the money. It is further submitted that even there is a decreepassed by the Bombay High Court against PD Agro. It is submitted thattherefore when it is revealed during investigation that the PD Agrosiphoned off Rs. 744 crores to the corporate debtor, the IRP ought tohave admitted the claim of the appellant even by lifting the veil. It issubmitted that the NCLT has also not considered the aforesaid in its trueperspective and has not even lifted the corporate veil which ought tohave been done in the facts and circumstances of the case.

5.4 It is further submitted by Shri Maninder Singh, learned seniorcounsel appearing on behalf of the appellant that therefore in theaforesaid peculiar facts and circumstances of the case, where a hugeamount of Rs. 693 crores is involved, which is due and payable to theappellant herein, which can be said to be a public body which providedan electronic exchange platform which commenced its operations afterthe Ministry of Consumer Affairs, Government of India granted it anexemption under Section 27 of the Forward Contracts (Regulation) Act,1952 to launch one-day forward contracts for buying and selling ofcommodities and therefore it is prayed to condone the delay in preferringthe appeal before the NCLAT, in exercise of powers under Article 142of the Constitution of India. Heavy reliance is placed on the decisions ofthis Court in the cases of Chitra Sharma v. Union of India, reportedin (2018) 18 SCC 575; Jaiprakash Associates Limited v. IDBI BankLimited, reported in (2020) 3 SCC 328; and Reliance GeneralInsurance Co. Ltd. v. Mampee Timbers and Hardwares Pvt. Ltd.,reported in (2021) 3 SCC 673, in support of his prayer to condone thedelay beyond the time prescribed under the IBC, i.e., the delay of 44days in preferring the appeal before the NCLAT, in exercise of powersunder Article 142 of the Constitution of India.

6. The present appeal is vehemently opposed by Shri Abhishek,learned Advocate appearing for the IRP for corporate debtor. It issubmitted that Section 61(2) of the Code provides for power of theAppellate Tribunal to condone the delay in the appeal. It is submittedthat the Appellate Tribunal can condone the delay of only 15 days overthe period of 30 days, if there is a sufficient cause. It is submitted thatbeyond the period of 15 days, over the period of 30 days, the AppellateTribunal has no jurisdiction to condone the delay. It is submitted thattherefore the learned Appellate Tribunal has rightly and correctlydismissed the appeal on the ground that it did not have the power to A

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Acondone the delay beyond the period of 15 days, over the period of 30days, i.e., in the present case the delay of 44 days.

6.1 It is submitted that as held by this Court in the case of Unionof India v. Popular Construction Co., reported in (2001) 8 SCC470, where the legislature prescribed a special limitation for the purposeBof the appeal and the period of limitation of 60 days was to be computedafter taking the aid of Sections 4, 5 and 12 of the Limitation Act, thespecific inclusion of these sections meant that to that extent only theprovisions of the Limitation Act stood extended and the applicability ofthe other provisions, by necessary implication stood excluded.

C6.2 It is further submitted by the learned counsel appearing onbehalf of the IRP that once the statute provides the period of limitationand to condone the delay up to a particular period and the statutespecifically provides that beyond a particular period, the delay cannot becondoned, the same has to be adhered to. Heavy reliance is placed onthe Constitution Bench decision of this Court in the case of New IndiaDAssurance Company Limited v. Hilli Multipurpose Cold StoragePrivate Limited, reported in (2020) 5 SCC 757.

6.3 It is further submitted by the learned counsel appearing forthe IRP that the law made by the Parliament must be given effect to. Itis submitted that as held by this Court in catena of decisions that hardshipEis no ground not to give effect to the mandate of Parliament and that lawoverrides equitable considerations. Reliance is placed on the followingdecisions of this Court, Rohitash Kumar v. Om Prakash Sharma,reported in (2013) 11 SCC 451 (paras 23 to 26); CMD/Chairman,Bharat Sanchar Nigam Limited v. Mishri Lal, reported in (2011) 14FSCC 739 (para 20); Raghunath Rai Bareja v. Punjab National Bank,reported in (2007) 2 SCC 230 (paras 29 to 37); Popat BahiruGoverdhane v. Special Land Acquisition Officer, reported in (2013)10 SCC 765 (para 16); and The Martin Burn Limited v. TheCorporation of Calcutta, reported in AIR 1966 SC 529 (para 14).

6.4 Making the above submissions and relying upon the aforesaiddecisions and the relevant provisions of the statute, namely, Sub-section(2) of Section 61 of the Code, it is submitted that as such no error hasbeen committed by the learned Appellate Tribunal in not condoning thedelay beyond the period of 15 days, over the period of 30 days. It issubmitted that as such the learned Appellate Tribunal has acted just in G

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consonance with the provisions of the statute and has followed thestatutory provisions strictly.

6.5 Now so far as the prayer on behalf of the appellant to condonethe delay beyond the period prescribed under the statute, in exercise ofpowers under Article 142 of the Constitution of India is concerned, it issubmitted that as observed and held by this Court in the case of Oil &Natural Gas Corporation Limited v. Gujarat Energy TransmissionCorporation Limited, reported in AIR 2017 SC 1352 where the statutecommands that the court shall not condone the delay beyond a particulardays, in other words, can condone delay only up to a particular days andnot beyond that, it would come within the ambit and sweep of theprovisions and policy of legislation and therefore it is un-condonable and

it cannot be condoned even taking recourse to Article 142 of theConstitution of India. It is submitted that what cannot be done directlyunder the statute as per the statutory provisions cannot be permitted tobe done indirectly, in exercise of powers under Article 142 of theConstitution of India.

6.6 It is further submitted that even otherwise and on meris also,the appellant cannot be said to be a creditor of the corporate debtor –Dunar Foods Limited. It is submitted that it is pertinent to note that ifForm ‘F’ dated 17.01.2018 filed by the appellant and the supportingdocuments are perused, it is evident that the claim filed to the extent ofRs. 673.85 crores is a claim against PD Agro. It is submitted that theappellant has filed its claim against the corporate debtor on the groundthat fraud/scam has been done by PD Agro in connivance with variousentities including the corporate debtor and therefore an amount ofRs. 673.85 crores alleged to be payable by the PD Agro should be paidby the corporate debtor. It is submitted that even the decree passed inCommercial Suit No. 11 of 2014 has been passed only against PD Agroand not the corporate debtor. It is submitted therefore even otherwisethe appellant is not a creditor of the corporate debtor and therefore IRPhas rightly not entertained the claim of the appellant. It is further submittedthat even thereafter the resolution plan has been approved by the NCLT– the adjudicating authority and the appellant has already assailed theapproved resolution plan in Company Appeal (AT) (Insolvency) No. 424of 2020 before the NCLAT.

6.7 Making the above submissions and relying upon the aforesaiddecisions, it is prayed to dismiss the present appeal.

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A7. We have heard the learned counsel for the respective partiesat length.

At the outset, it is required to be noted that the appellant hereinhas challenged the order passed by the adjudicating authority dated6.3.2019 affirming the decision of the resolution professional of rejectionBof the claim of the appellant before the NCLAT. The appeal preferredbefore the NCLAT was under Section 61(2) of the IB Code. As perSection 61(2) of the IB Code, the appeal was required to be preferredwithin a period of thirty days. Therefore, the limitation period prescribedto prefer an appeal was 30 days. However, as per the proviso to Section61(2) of the Code, the Appellate Tribunal may allow an appeal to be filedCafter the expiry of the said period of 30 days if it is satisfied that therewas sufficient cause for not filing the appeal, but such period shall notexceed 15 days. Therefore, the Appellate Tribunal has no jurisdictionat all to condone the delay exceeding 15 days from the period of 30days, as contemplated under Section 61(2) of the IB Code. Section 61(2)Dof the IB Code reads as under:

“Section 61(2) – Every appeal under sub-section (1) shall be filedwithin thirty days before the National Company Law AppellateTribunal:

Provided that the National Company Law Appellate Tribunal mayEallow an appeal to be filed after the expiry of the said period ofthirty days if it is satisfied that there was sufficient cause for notfiling the appeal, but such period shall not exceed fifteen days.”

7.1 In the present case, even the appellant applied for the certifiedcopy of the order passed by the adjudicating authority on 8.4.2019, i.e.,Fafter a delay of 34 days. Therefore, even the certified copy of the orderpassed by the adjudicating authority was applied beyond the prescribedperiod of limitation, i.e., beyond 30 days. The certified copy of the orderwas received by the appellant on 11.04.2019 and the appeal before theNCLAT was preferred on 24.06.2019, i.e., after a delay of 44 days. AsGthe Appellate Tribunal can condone the delay up to a period of 15 daysonly, the Appellate Tribunal refused to condone the delay which wasbeyond 15 days from completion of 30 days, i.e., in the present casedelay of 44 days and consequently dismissed the appeal. Therefore, assuch, it cannot be said that the learned Appellate Tribunal committedany error in not condoning the delay of 44 days, which was beyond theH

delay of 15 days which cannot be condoned as per Section 61(2) of theIB Code.

8. An identical question came to be considered by this Court inthe case of Popular Construction Co. (supra). While consideringSection 34 of the Arbitration and Conciliation Act, 1996 which providedthat an application for setting aside of the award cannot be made afterthree months and it further provided that if the court is satisfied that theapplicant was prevented by sufficient cause from making an applicationwithin the said period of three months, it may entertain the applicationwithin a further period of thirty days, but not thereafter, after consideringSection 29 (2) of the Limitation Act and after observing that “Arbitration& Conciliation Act, 1996 is a special law” and that Section 34 of theArbitration & Conciliation Act, 1996 provides for a period of limitationdifferent from that prescribed under the Limitation Act, ultimately thisCourt held that Section 5 of the Limitation Act shall not be applicable asthe legislature has prescribed a special limitation for the purpose of theappeal as provided under Section 34 of the Arbitration & ConciliationAct, 1996. In paragraphs 11 & 12, it is observed and held as under:

“11. Thus, where the legislature prescribed a special limitation forthe purpose of the appeal and the period of limitation of 60 dayswas to be computed after taking the aid of Sections 4, 5 and 12 ofthe Limitation Act, the specific inclusion of these sections meantthat to that extent only the provisions of the Limitation Act stoodextended and the applicability of the other provisions, by necessaryimplication stood excluded.

12. As far as the language of Section 34 of the 1996 Act isconcerned, the crucial words are “but not thereafter” used in theproviso to sub-section (3). In our opinion, this phrase would amountto an express exclusion within the meaning of Section 29(2) ofthe Limitation Act, and would therefore bar the application ofSection 5 of that Act. Parliament did not need to go further. Tohold that the court could entertain an application to set aside theaward beyond the extended period under the proviso, would renderthe phrase “but not thereafter” wholly otiose. No principle ofinterpretation would justify such a result.”

8.1 An identical question came to be considered by a ConstitutionBench of this Court in the case of Hilli Multipurpose Cold Storage A

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APrivate Limited (supra). The question before the Constitution Benchwas, whether the District Forum has the power to extend the time forfiling of response to the complaint beyond the period of 15 days, in additionto 30 days, as envisaged under Section 13(2)(a) of the ConsumerProtection Act? After approving the decision of this Court in the case ofJ.J. Merchant v. Shrinath Chaturvedi, reported in (2002) 6 SCCB635 and after considering the various decisions of this Court on thepoint, the Constitution Bench has ultimately concluded that “the DistrictForum has no jurisdiction and/or power to extend the time for filing ofresponse to the complaint beyond the period of 15 days, in addition to 30days, as envisaged under Section 13(2)(a) of the Consumer ProtectionCAct.

9. It is true that in a given case there may arise a situation wherethe applicant/appellant may not be in a position to file the appeal evenwithin a statutory period of limitation prescribed under the Act and evenwithin the extended maximum period of appeal which could be condonedDowing to genuineness, viz., illness, accident etc. However, under thestatute, the Parliament has not carved out any exception of such asituation. Therefore, in a given case, it may cause hardship, however,unless the Parliament has carved out any exception by a provision oflaw, the period of limitation has to be given effect to. Such powers areonly with the Parliament and the legislature. The courts have no jurisdictionEand/or authority to carve out any exception. If the courts carve out anexception, it would amount to legislate which would in turn might beinserting the provision to the statute, which is not permissible.

10. In the case of Rohitash Kumar (supra), this court observedand held as under:-F

“23. There may be a statutory provision, which causes greathardship or inconvenience to either the party concerned, or to anindividual, but the Court has no choice but to enforce it in fullrigor. It is a well settled principle of interpretation that hardship orinconvenience caused, cannot be used as a basis to alter theGmeaning of the language employed by the legislature, if suchmeaning is clear upon a bare perusal of the Statute. If the languageis plain and hence allows only one meaning, the same has to begiven effect to, even if it causes hardship or possible injustice.(Vide: Commissioner of Agricultural Income Tax, West Bengal v.

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Keshab Chandra Mandal, AIR 1950 SC 265; and D. D. Joshi &Ors. v. Union of India & Ors., (1983) 2 SCC 235).

24. In Bengal Immunity Co. Ltd. v. State of Bihar & Ors., AIR1955 SC 661 it was observed by a Constitution Bench of thisCourt that, if there is any hardship, it is for the legislature to amendthe law, and that the Court cannot be called upon, to discard thecardinal rule of interpretation for the purpose of mitigating suchhardship. If the language of an Act is sufficiently clear, the Courthas to give effect to it, however, inequitable or unjust the resultmay be. The words, ‘dura lex sed lex’ which mean “the law ishard but it is the law.” may be used to sum up the situation.Therefore, even if a statutory provision causes hardship to somepeople, it is not for the Court to amend the law. A legal enactmentmust be interpreted in its plain and literal sense, as that is the firstprinciple of interpretation.

25. In Mysore State Electricity Board v. Bangalore Woolen, Cotton& Silk Mills Ltd. & Ors., AIR 1963 SC 1128, a Constitution Benchof this Court held that, “inconvenience is not” a decisive factor tobe considered while interpreting a statute. In Martin Burn Ltd. v.The Corporation of Calcutta, AIR 1966 SC 529, this Court, whiledealing with the same issue observed as under:–

“A result flowing from a statutory provision is never an evil. ACourt has no power to ignore that provision to relieve what itconsiders a distress resulting from its operation. A statute mustof course be given effect to whether a Court likes the result ornot.” (See also: The Commissioner of Income Tax, West BengalI, Calcutta v. M/s Vegetables Products Ltd., (1973) 1 SCC442; and Tata Power Company Ltd. v. Reliance Energy Limited& Ors., (2009) 16 SCC 659).

26. Therefore, it is evident that the hardship caused to an individual,cannot be a ground for not giving effective and grammaticalmeaning to every word of the provision, if the language usedtherein, is unequivocal.”

10.1 In the case of Mishri Lal & Others (supra), it is observedthat the law prevails over equity if there is a conflict. It is observedfurther that equity can only supplement the law and not supplant it.

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10.2 In the case of Raghunath Rai Bareja (supra), in paras 30to 37, this Court observed and held as under :-

30. Thus, in Madamanchi Ramappa & Anr. vs. Muthaluru Bojjappa,AIR 1963 SC 1633 (vide para 12) this Court observed:

“[W] what is administered in Courts is justice according tolaw, and considerations of fair play and equity howeverimportant they may be, must yield to clear and expressprovisions of the law”

31. In Council for Indian School Certificate Examination vs. IshaMittal & Anr., 2000 (7) SCC 521 (vide para 4) this Court observed:

“Considerations of equity cannot prevail and do not permit aHigh Court to pass an order contrary to the law.”

32. Similarly in P.M. Latha & Anr. vs. State of Kerala & Ors.2003(3) SCC 541 (vide para 13) this Court observed:

“13. Equity and law are twin brothers and law should be appliedand interpreted equitably, but equity cannot override written orsettled law.” (Emphasis supplied)

33. In Laxminarayan R. Bhattad & Ors. vs. State of Maharashtra& Anr. 2003(5) SCC 413 (vide para 73) this Court observed:

“73. It is now well settled that when there is a conflict betweenlaw and equity the former shall prevail.”

34. Similarly in Nasiruddin & Ors. vs. Sita Ram Agarwal, 2003(2)SCC 577 (vide para 35) this Court observed:

“35. In a case where the statutory provision is plain andunambiguous, the court shall not interpret the same in a differentmanner, only because of harsh consequences arisingtherefrom.”

35. Similarly in E. Palanisamy vs. Palanisamy (Dead) by Lrs. &Ors., 2003(1) SCC 123 (vide para 5) this Court observed:

“Equitable considerations have no place where the statutecontained express provisions”.

36. In India House vs. Kishan N. Lalwani, 2003(9) SCC 393 (videpara 7) this Court held that:

“The period of limitation statutorily prescribed has to be strictlyadhered to and cannot be relaxed or departed from by equitableconsiderations.” (Emphasis supplied)

37. In the present case, while equity is in favour of the respondent-Bank, the law is in favour of the appellant, since we are of theopinion that the impugned order of the High Court is clearly inviolation of Section 31 of the RDB Act, and moreover the claim istime-barred in view of Article 136 of the Limitation Act read withSection 24 of the RDB Act. We cannot but comment that it is theBank itself which is to blame because after its first ExecutionPetition was dismissed on 23.8.1990 it should have immediatelythereafter filed a second Execution Petition, but instead it filedthe second Execution Petition only in 1994 which was dismissedon 18.8.1994. Thereafter, again, the Bank waited for 5 years andit was only on 1.4.1999 that it filed its third Execution Petition. Wefail to understand why the Bank waited from 1990 to 1994 andagain from 1994 to 1999 in filing its Execution Petitions. Hence, itis the Bank which is responsible for not getting the decree executedwell in time.”

In the case before this Court, the claim made by the Bank wasfound to be time barred and to that this Court observed that whilethe equity is in favour of the Bank, the law is not in favour of theborrower, however, since the claim is time barred, as the executionpetition was barred by the limitation, this court set-aside as suchthe execution petition.

10.3 In the case of Popat Bahiru Govardhane & Others(supra), this Court has observed and held that it is a settled legal positionthat the law of limitation may harshly affect a particular party but it hasto be applied with all its rigour when the Statute so prescribes. TheCourt has no power to extend the period of limitation on equitable grounds.It is further observed that the statutory provision may cause hardship orinconvenience to a particular party but the Court has no choice but toenforce it by giving full effect to the same.

11. It is also required to be noted that even Shri Maninder Singh,learned senior counsel appearing on behalf of the appellant has, as such,fairly conceded that considering Section 61(2) of the IBCode, theAppellate Tribunal has jurisdiction or power to condone the delay not A

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Aexceeding 15 days from the completion of 30 days, the statutory periodof limitation. However, has requested and prayed to condone the delayin exercise of powers under Article 142 of the Constitution of India, inthe facts and circumstances of the case and submitted that the amountinvolved is a very huge amount and that the appellant is a public body.We are afraid what cannot be done directly considering the statutoryBprovisions cannot be permitted to be done indirectly, while exercising thepowers under Article 142 of the Constitution of India.

11.1 At this stage, decision of this Court in the case of Oil &Natural Gas Corporation Limited (supra) is required to be referredto. Before this Court, the question was with respect to delay beyondC120 days in preferring the appeal under Section 125 of the ElectricityAct and the question arose whether the delay beyond 120 days inpreferring the appeal is condonable or not. After considering variousearlier decisions of this Court on the point and considering the languageused in Section 125 [2] of the Electricity Act which provided that delay Dbeyond 120 days is not condonable, this Court has observed and heldthat it is not condonable and it cannot be condoned, even taking recourseto Article 142 of the Constitution. While observing and holding so inpara-16, this Court has observed and held as under:-

“16. From the aforesaid decisions, it is clear as crystal that theEConstitution Bench inSupreme Court Bar Association [AIR 1988SC 1895] [Supra] has ruled that there is no conflict of opinion inAntulay’s case [AIR 1988 SC 1531] or in Union CarbideCorporation’s case with the principle set-down in Prem ChandGarg & Anr. v. Excise Commissioner, AIR 1963 SC 996. Be itnoted, when there is a statutory command by the legislation asFregards limitation and there is the postulate that delay can becondoned for a further period not exceeding sixty days, needlessto say, it is based on certain underlined, fundamental, general issuesof public policy as has been held in Union Carbide Corporation’scase. As the pronouncement om Chhattisgarh State ElectricityGBoard [AIR 2010 SC 2061] (Supra) lays down quite clearly thatthe policy behind the Act emphasizing on the constitution of aspecial adjudicatory forum, is meant to expeditiously decide thegrievances of a person who may be aggrieved by an order of theadjudicatory officer or by an appropriate Commission. The Act isa special legislation within the meaning of Section 29 (2) of the H

Limitation Act and, therefore, the prescription with regard to thelimitation has to be the binding effect and the same has to befollowed regard being had to its mandatory nature. To put it in adifferent way, the prescription of limitation in a case of presentnature, when the statute commands that this Court may condonethe further delay not beyond 60 days, it would come within theambit and sweep of the provisions and policy of legislation. It isequivalent to Section 3 of the Limitation Act. Therefore, it isuncondonable and it cannot be condoned taking recourse to Article142 of the Constitution.”

11.2 In the case of Teri Oat Estates (P) Ltd. v. U.T. Chandigarh,reported in (2004) 2 SCC 130, in paragraphs 36 & 37, it is observed asunder:

“36. We have no doubt in our mind that sympathy or sentiment byitself cannot be a ground for passing an order in relation wheretothe appellants miserably fail to establish a legal right. It is furthertrite that despite an extraordinary constitutional jurisdictioncontained in Article 142 of the Constitution of India, this Courtordinarily would not pass an order which would be contraventionof a statutory provision.

37. As early as in 1911, Farwell, L.J. In Latham v. RichardJohnson & Nephew Ltd. (1911-12) All ER Rep 117 observed:(All ER p. 123E)

“We must be very careful not to allow our sympathy withthe infant plaintiff to affect our judgment. Sentiment is adangerous will o’ the wisp to take as a guide in the searchfor legal principles”

Thus, considering the statutory provisions which provide that delaybeyond 15 days in preferring the appeal is uncondonable, the same cannotbe condoned even in exercise of powers under Article 142 of theConstitution.

12. In view of the afore-stated settled proposition of law and evenconsidering the fact that even the certified copy of the order passed bythe adjudicating authority was applied beyond the period of 30 days andas observed hereinabove there was a delay of 44 days in preferring theappeal which was beyond the period of 15 days which maximum couldhave been condoned and in view of specific statutory provision contained A

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Ain Section 61(2) of the IB Code, it cannot be said that the NCLAT hascommitted any error in dismissing the appeal on the ground of limitationby observing that it has no jurisdiction and/or power to condone thedelay exceeding 15 days.

13. In view of the above and for the reasons stated above, noBinterference of this Court is called for. The present appeal fails anddeserves to be dismissed and is accordingly dismissed. However, in thefacts and circumstances of the case, there shall be no order as to costs.

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Ankit Gyan

Appeal dismissed.